FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-50768

Plaintiff-Appellee, D.C. No.

v. CR-05-00734-JAH  Southern District BUENAVENTURA CASTILLO-BASA,

of California, Defendant-Appellant.

San Diego

ORDER 

Filed July 24, 2007

Before: Stephen Reinhardt, Stephen S. Trott, and

Kim McLane Wardlaw, Circuit Judges.

Order;

Dissent by Judge Callahan

ORDER

An active judge sua sponte called for rehearing en banc.

The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.

R. App. P. 35(b). 

The sua sponte call for rehearing en banc is rejected.

CALLAHAN, Circuit Judge, with whom O’SCANNLAIN,

KLEINFELD, TALLMAN, and BEA, Circuit Judges, join,

dissenting from the denial of rehearing en banc: 

I respectfully dissent from our denial of rehearing en banc

because I read the panel majority as holding, in essence, that,

8919
if a criminal defendant lies to a jury persuasively, the government cannot prosecute him for perjury. In my opinion, this is

contrary to Supreme Court precedent and our prior opinions.

Moreover, it allows a fundamental constitutional principle —

that a person may not be twice placed in jeopardy for the

same offense — to be used as a vehicle for protecting perjury.

I.

The government indicted Castillo-Basa for being a previously deported alien found in the United States in violation of

8 U.S.C. § 1326. United States v. Castillo-Basa, 478 F.3d

890, 894 (9th Cir. 2007). Through discovery, Castillo-Basa

learned of the existence of an audio tape of his deportation

hearing, and that the government could not locate this tape.

Id. 

Castillo-Basa then moved to dismiss the indictment claiming that there was no prior deportation. In support of his

motion, he filed a sworn declaration stating that “[p]rior to

May 2, 1996, I never appeared before an immigration judge”

and “prior to May 2, 1996, I was never given an immigration

hearing.” Id. The district court did not dismiss the case, and

the matter proceeded to trial, at which time the government

sought to prove that Castillo-Basa had been ordered deported

without the lost audio tape. Id. At trial Castillo-Basa testified

that he was supposed to appear before an immigration judge on April 30, but that on the date of the

hearing, no one came to get him out of his cell. He

further testified that he had never come before an

immigration judge and that he did not see any representative of the INS until May, when the agent took

him from his cell to the Mexican border. 

Id. 

The majority recites that the jury was instructed, that to

prove previous deportation, the government must establish

8920 UNITED STATES v. CASTILLO-BASA
“(1) that a deportation occurred as to the defendant and, as a

result, (2) a warrant of deportation was issued, and (3) executed by the removal of the defendant from the United

States.” Id. at 898 (internal punctuation modified). The

defense theory was that, in order to be deported, an alien must

be brought before an immigration judge and that CastilloBasa was never placed in front of a judge. Id. at 894. The district court did not agree. It rejected Castillo-Basa’s proposed

jury instruction that the government was required to prove

that he appeared before the immigration judge. Id. at 894-95,

910. In addition, when the jury specifically asked if a defendant had to be present in front of a judge, the district court

responded “no,” but that the jury could “consider whether or

not the defendant was present before the immigration judge in

deciding whether or not a deportation proceeding actually

occurred as to the defendant.” Id. at 910. The jury acquitted

Castillo-Basa of the illegal reentry offense. Id. at 895. 

After the trial, the government located the tape recording of

Castillo-Basa’s deportation hearing. The majority opinion

recounts:

On the recording, Immigration Judge John Williams

recited the names of individuals who were to have a

deportation hearing that day; Castillo-Basa’s name

was among those listed. An individual responded to

the name “Buenaventura Castillo-Basa” and admitted that he had been convicted of a crime in December 1985. The details provided by the responding

individual regarding the 1985 conviction, such as the

date of the offense and the amount of time served,

correlate with the details of Castillo-Basa’s criminal

history. 

Id. 

On April 27, 2005, a grand jury indicted Castillo-Basa on

two counts of perjury charging him with submitting a false

UNITED STATES v. CASTILLO-BASA 8921
declaration and with falsely testifying under oath. Id. CastilloBasa filed a motion to dismiss the indictment on the basis of

double jeopardy and collateral estoppel. Id. The district court

denied the motion, concluding that Castillo-Basa’s “veracity

with regard to whether he had attended a deportation hearing

had not necessarily been decided in the first trial” and that

“Castillo-Basa had taken unfair advantage of the government’s inability to locate the tape recording by giving perjured testimony and, in so doing, had violated public policy

and adversely affected the integrity of the judicial process.”

Id. 

Castillo-Basa appealed, and the panel majority reversed the

district court and directed the dismissal of the perjury indictment. Id. at 906.

II.

The panel majority’s grant of relief is based on a strained

interpretation of both the law and the facts. The Supreme

Court applied collateral estoppel to a prior judgment in a

criminal case in Ashe v. Swanson, 397 U.S. 436, 443 (1970).

In Ashe, there was a single underlying incident: six men

engaged in a poker game in the basement of a home were

robbed by three or four masked men armed with a shotgun

and pistols. Id. at 437. Ashe was tried for robbing one of the

poker players and acquitted. Id. at 439. Six weeks later he was

tried for robbing another participant in the poker game, and

convicted. Id. at 439-40. The Supreme Court set aside Ashe’s

conviction, noting:

the record is utterly devoid of any indication that the

first jury could rationally have found that an armed

robbery had not occurred, or that Knight had not

been a victim of that robbery. The single rationally

conceivable issue in dispute before the jury was

whether the petitioner had been one of the robbers.

And the jury by its verdict found that he had not. 

8922 UNITED STATES v. CASTILLO-BASA
Id. at 445. In our case, the jury was instructed to determine

whether the Government had proved deportation beyond a

reasonable doubt, not whether Castillo-Basa had actually

appeared before an immigration judge. 

Nonetheless, the panel majority manipulates both the law

and the facts in an effort to apply collateral estoppel to

Castillo-Basa’s prosecution. The panel majority starts by noting, that since United States v. Hernandez, 572 F.2d 218, 220

(9th Cir. 1978), we have applied Ashe through a three-step

process:

(1) An identification of the issues in the two actions

for the purpose of determining whether the issues are

sufficiently similar and sufficiently material in both

actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide

whether the issue was “litigated” in the first case;

and (3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case. 

However, the panel majority fails to adhere to the proper definition of the critical third prong — “whether the issue was

necessarily decided in the first action.” The Supreme Court in

Ashe explained that for this prong:

Where a previous judgment of acquittal was based

upon a general verdict, as is usually the case, this

approach requires a court to examine the record of a

prior proceeding, taking into account the pleadings,

evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its

verdict upon an issue other than that which the

defendant seeks to foreclose from consideration. 

397 U.S. at 444 (internal quotation omitted). In accordance

with Ashe, in Hernandez, we stressed that collateral estoppel

UNITED STATES v. CASTILLO-BASA 8923
only applies where “an issue of fact or law” is “actually litigated and determined” and the “determination is essential to

the judgment.” 572 F.2d at 220. The objective application of

this standard supports the district court’s denial of CastilloBasa’s motion to dismiss the indictment. 

The panel majority, however, by focusing on what the

defendant wanted the jury to decide instead of what the jury

was instructed to decide, concludes that the jury in the first

trial must have decided that Castillo-Basa was telling the truth

when he testified. “The jury at Castillo-Basa’s trial necessarily decided the issue of whether Castillo-Basa was afforded a

deportation hearing at which he was present. It also necessarily decided that his statements were not false.” Castillo-Basa,

483 F.3d at 899. This determination is simply wrong as a matter of law and fact, and raises an improper bar against perjury

prosecutions whenever defendants testify and are acquitted at

trial. 

Although Castillo-Basa testified that he was not present at

the deportation hearing, a determination of his veracity was

not “essential to the judgment.” The trial judge rejected

Castillo-Basa’s request for a jury instruction that would have

made his presence at the deportation hearing an element of the

crime (a decision that is not questioned by the majority) and

specifically told the jury that it did not have to determine

whether Castillo-Basa had appeared before the immigration

judge. Id. at 910. Moreover, Castillo-Basa offered arguments

that a deportation hearing had not occurred, even outside his

presence, including:

1. No fingerprint or photograph on the deportation

order; 

2. The government’s failure to call the Immigration Judge as a witness; 

3. The government’s failure to present the “master

list” from the proceedings, which should have

8924 UNITED STATES v. CASTILLO-BASA
included Castillo-Basa’s name if he had been

deported; 

4. The absence of a tape recording or transcript of

the deportation proceedings; 

5. The failure to produce detention records; and 

6. The “fact” that persons in deportation hearings

often give false names. 

Castillo-Basa, 478 F.3d 907. These flaws in the government’s

case-in-chief are more than sufficient to show that CastilloBasa’s veracity was not “necessarily decided in the first case.”

Hernandez, 572 F.2d at 220. Indeed, a reasonable juror could

have determined that any one of these factors, or a combination of these factors, raised a reasonable doubt as to whether

a deportation had occurred. In other words, “a rational jury

could have grounded its verdict upon an issue other than that

which the defendant seeks to foreclose from consideration.”

Ashe, 397 U.S. at 444. 

III.

The majority’s revision of the criteria for the application of

a collateral estoppel bar is also contrary to the Supreme

Court’s refinement of the bar in Dowling v. United States, 493

U.S. 342 (1990). In Dowling, the Supreme Court emphasized

its language in Ashe that “when an issue of ultimate fact has

once been determined by a valid and final judgment, that

issue cannot again be litigated between the same parties in

any future lawsuit.” Id. at 347 (quoting Ashe, 397 U.S. at 443)

(emphasis added). Although the situation in Dowling is very

different from the situation at bar, the Supreme Court’s language is instructive. The Court wrote:

Dowling contends that, by the same principle, his

prior acquittal precluded the Government from introUNITED STATES v. CASTILLO-BASA 8925
ducing into evidence Henry’s testimony at the third

trial in the bank robbery case. We disagree because,

unlike the situation in Ashe v. Swenson, the prior

acquittal did not determine an ultimate issue in the

present case. This much Dowling concedes, and we

decline to extend Ashe v. Swenson and the collateralestoppel component of the Double Jeopardy Clause

to exclude in all circumstances, as Dowling would

have it, relevant and probative evidence that is otherwise admissible under the Rules of Evidence simply

because it relates to alleged criminal conduct for

which a defendant has been acquitted. 

Id. at 348. Similarly here, Castillo-Basa’s acquittal in the first

case “did not determine an ultimate issue” raised by the

charges of perjury. The issue in the first case was whether “a

deportation proceeding occurred as to [the] defendant.”

Castillo-Basa, 478 F.3d at 898. The ultimate issue raised by

Castillo-Basa’s subsequent indictment is whether he lied

when he testified that he did not physically appear before an

immigration judge. Since the jury in the first trial was specifically instructed that the government did not have to prove

Castillo-Basa’s presence at the deportation hearing, see id. at

910, Castillo-Basa’s testimony that he was not present did not

concern an “ultimate issue.”

IV.

Finally, my dissent is prompted by concerns with the practical consequences of the panel majority’s decision. Our system relies heavily on individuals telling the truth under oath.1

Nonetheless, where a defendant secures an acquittal by lying

1

See United States v. Mandujano, 425 U.S. 564, 576 (1976) (“In this

constitutional process of securing a witness’ testimony, perjury simply has

no place whatever. Perjured testimony is an obvious and flagrant affront

to the basic concepts of judicial proceedings. Effective restraints against

this type of egregious offense are therefore imperative.”) 

8926 UNITED STATES v. CASTILLO-BASA
about an element of a crime, the Double Jeopardy Clause bars

the government from seeking to retry the defendant for the

first offense or prosecuting the defendant for perjury.2 But the

majority’s approach expands this perjury exemption, thus

undermining one of the critical means for ensuring truthful

testimony. If a defendant cannot be tried for perjury, what

motive does he have to tell the truth? If he lies and is convicted, he has risked little, but if he lies and gains an acquittal,

according to the panel majority, as long as the lie is relevant

to an underlying issue, he could not be charged with perjury.

The panel majority’s attempt to uncouple the collateral estoppel bar from the ultimate issues in the cases is no mere technicality as a defendant has little motivation to lie unless he or

she thinks that the lie is somehow related to the pending

charges. Collateral estoppel should only bar prosecution for

perjury that addressed the ultimate issue in the first trial. 

Despite the panel majority’s assertion to the contrary, I fear

its opinion will be read as creating “a per se bar against perjury prosecutions involving defendants who testify and are

acquitted at trial.” Castillo-Basa, 478 F.3d at 905. The opinion states:

When an acquitting jury has not necessarily or actually decided the question of a defendant’s veracity,

or a material issue sufficiently similar to one the

prosecution must establish in the prospective second

proceeding, collateral estoppel does not bar a subsequent trial for perjury. 

Id. Although this sentence starts with the implication that a

jury must “necessarily” have decided the issue, its clauses are

connected with the word “or.” Accordingly, the sentence may

2

I agree with Judge Trott’s statement in his dissent “that if the perjury

charge were based on [Castillo-Basa’s] testimony to the effect that he was

‘not deported,’ collateral estoppel might apply.” Castillo-Basa, 478 F.3d

at 909. 

UNITED STATES v. CASTILLO-BASA 8927
be read as providing that, if the first jury decided “a material

issue sufficiently similar to one the prosecution must establish

in the prospective second proceeding,” collateral estoppel bars

prosecution for perjury. But a new standard for collateral

estoppel based on “a material issue sufficiently similar,”

would conflict with the Supreme Court’s position in Ashe and

Dowling and our reiteration in Hernandez that collateral

estoppel only applies when “the issue was necessarily decided

in the first case.” 572 F.2d at 220. In light of the panel majority’s strained interpretation of the facts, a reasonable reader

may well conclude that the panel majority created a new standard. I would not create such a standard nor impose the interpretation of the panel majority’s opinion on the district courts.

Following the Supreme Court’s opinion in Ashe, 397 U.S.

436, we held that, for collateral estoppel to bar a subsequent

prosecution for perjury in a criminal action, the defendant had

to show that the issue that was the subject of the perjury “was

necessarily decided in the first case.” Hernandez, 572 F.2d at

220. For over a quarter of a century, we have adhered to this

standard. We should have taken this case en banc to correct

the panel majority’s expansion of this standard and manipulation of the facts, and to re-emphasize that the collateral estoppel bar only applies — as the Supreme Court has stated —

when a rational jury could not “have grounded its verdict

upon an issue other than that which the defendant seeks to

foreclose from consideration.” Ashe, 397 U.S. at 444.

8928 UNITED STATES v. CASTILLO-BASA

PRINTED FOR

ADMINISTRATIVE OFFICE—U.S. COURTS

BY THOMSON/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted

© 2007 Thomson/West.